10.23.10

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From Copyrights to Patents: How Software Patents Became the Top Linux Issue

Posted in GNU/Linux, Kernel, Patents, SCO at 9:51 am by Dr. Roy Schestowitz

Disaster codes

Summary: An overview of news about SCO (copyright challenge) and software patents, which are increasingly being used to threaten the legality of Free/libre software

Microsoft’s and Apple’s #1 weapon against software freedom appears to be software patents. More and more people recognise this, especially now that SCO is passé. Groklaw still organises some old SCO texts, including some which got unsealed and now reveal:

[T]he judge’s instructions to the jury later that same day, the last day of the trial.

We also learn more on why Novell’s slander of title counterclaim was tossed, basically on a legal technicality, because of a lack of specific evidence of special damages Novell suffered, but note the plain-spoken judge on the matter and on Darl McBride’s behavior:

THE COURT: Mr. Jacobs, again, the proposed instruction in this case — and we have spent the better part of the last hour plus looking for any kind of case law to help us — would indicate the types of damages contemplated by a scienter title case are narrow and focus almost exclusively on the types of things that are described in the jury instruction. And absent anybody finding anything to the contrary, the Court feels that it is going to have to grant the Rule 50 motion because of the absence of the types of damages that are required.

I would note on the question of constitutional malice, our analysis of the evidence would be that the Court could not grant it on that basis because we believe there is evidence that indicated that Mr. McBride was aware of the fact that his company may not own the copyrights, he persisted in making public statements, and a jury — a reasonable jury could conclude that there was constitutional malice.

But in the absence of any finding of damages, the Court is going to grant the motion and we’ll just have to do the work overnight that we must in order to exclude the counterclaim, any reference to the counterclaim during the course of — and what will result is tomorrow morning I will give you another packet. I’ll have to ask if you could use your fellow attorneys here to go through that to make certain we’ve done it properly.

So, he reluctantly felt bound by law, not finding the highly refined type of damages slander of title cases require, while at the same time noting that had they been presented he believed a jury could find constitutional malice on SCO’s part, because McBride knew there was dispute over the ownership of the copyrights but he persisted with his public statements otherwise. Interestingly, SCO initially had the same damages issue with its slander of title complaint, lo these many years ago, but it was allowed to revise the complaint to replead better. Novell much later in the process was not, probably because it was now an issue of evidence.

Well, a SCO bankruptcy hearing gets cancelled again and SCO files notice of cure amounts again. Groklaw also publishes new objections to this cure notice by SCOracle and by EMC (which works with Microsoft and owns VMB_ware).

We have found no mainstream news about the SCO case. It sometimes seems like Groklaw regulars and Pamela Jones are the only ones (except the trial’s lawyers plus jury) who keep track of this lost case. Techrights never had much SCO case expertise, but our area of focus is software patents and with informants from the FFII we shall continue to share some analysis, mostly an assortment of existing analyses. It goes without saying that we do not always agree with opinions that we quote or cite here. We try to be comprehensive by presenting all sides and forming an opinion about each. One point made by the FFII’s president last night, for example, is that news about Google’s tax avoidance* is in some way related to its policy on software patents. A reference to the news was put here earlier on in our list of links, but the suggestion that “Google is using its software patents to evade US taxes” is one we could not substantiate. I asked the FFII’s president: “Patents?”

“Yes,” he said, “intellectual property”. It would be nice to see the correlation, if any, between software/business method patents and shifting of tax processing to other countries. Some banking tricks are actually patented (c/f In Re Bilski). The FSFE, which is based near the FFII, recently exposed the latest hostile behaviour of the BSA [1, 2, 3, 4, 5, 6, 7, 8], which TechDirt now accuses of sending “Ridiculously Bogus Letter To European Commission” (it’s the same BSA which lies about software patents).

Is it just me, or is the BSA becoming a bigger and bigger joke each time it does just about anything these days? For years, the organization has put out its yearly bogus stats on “piracy,” which have been debunked over and over and over again. They’re about the only trade group that still has the gall to equate a single unauthorized copy to a single lost sale (even the RIAA and MPAA have moved away from that claim). They’ve also been known to simply make up survey numbers, rather than actually ask people in certain countries. And then, even on news stories, they seem to make it clear that they have no clue what’s going on — such as last week’s announcement that ACTA was a treaty already signed by 37 countries, when it’s neither a treaty, nor has it been signed by anyone.

The BSA is not any better than the Murdoch-funded Chamber of Commerce. On behalf of big business it attacks the rights of citizens.

Jamie Love has just explained what the EU must do about ACTA in order to eliminate or mitigate the patent-related ramifications:

Jamie Love has been one of the key people writing about and fighting the worst aspects of ACTA. He’s just posed a good question on Twitter:

Why haven’t the EU civil society groups done more on patents in ACTA? It is quite possible to get patents out at this point.

Michael Geist quotes Jamie Love as saying/writing:

Only countries that want patents in ACTA are Japan, Switzerland & EU. Strongest EU voice on patents is Germany.

TechDirt has another decent new post where the idea gets pushed that “Patents Create Incentives For More Patents, Not Innovation” (needing defence against patent attacks, for example, just like nuclear weapons). From this post:

While many people (especially politicians and the press) like to equate patents and innovation (often falsely suggesting that fewer patents means less innovation), studies have shown that patents are actually a really bad proxy for innovation, in that there’s simply no direct link between the two. And that’s a problem, considering that the patent system is supposed to be about creating more incentives for innovation. In fact, however, it often appears that the patent system is actually creating incentives to get more patents.

[...]

Incentives are funny things. If you actually believe that patents are correlated to innovation, then such strategies make sense. But if the reality is that patents are simply correlated to patents, then it’s a huge dead weight loss to focus so much on patenting, rather than actual innovation.

Openuniverse speaks about the 4 freedoms and software patents in his blog:

free software license: any license that gives the user of the software all 4 freedoms.

strong license: a free software license designed to keep those 4 freedoms, even for users down the line, through copyleft- a requirement that users also grant the same freedoms for derivative works.

permissive license: a free software license that doesn’t worry about how strong it is, just that it gives the 4 freedoms.

the problem with permissive licenses is not always an issue- lots of projects will not be high profile enough (or even useful or innovative enough) to end up in the crosshairs of the competition- however, what constitutes “high-profile” varies- you may have never heard of tomtom, but it became a victim of software patent abuse by larger software companies (tomtom is a dutch company that makes gps devices.)

Here is another new post about wireless routers with embedded Linux. Red Hat’s Haish Pillay calls it “more evidence on the failure of software patents” and it goes like this: [via Slashdot]

Optimum Path is now suing basically everybody making an embedded Linux based wireless router for infringing on patent #7035281, filed September 13, 2000. This patent covers many features of the WRT-54G series (first shipped in Dec, 2002), and related products, from multiple other manufacturers, features that were built into the Linux mainline code, long before the patent was filed. Optimum Path now also holds a second patent – filed in 2005 – granted in July 2010 – which covers not only the ground covered by the first patent but includes content filtering (!?). I’m told this latter patent is not currently the subject of litigation, but it bothers me as much as the first – we were doing content filtering in Linux in 1999, also… Everybody was doing it.

In looking back on the heady years of 1998-2002, I’m now nearly certain that back in July of 1998, we actually created the first recognizable “embedded Linux wireless router”. PLEASE: Note the word choice, there – embedded, Linux, wireless, router. Eliminate any of those words and you end up with a different product, from a different person.

Here we have another illustration of software patents as the top threat to Linux. SCO ceased to be a problem several years ago. Thanks to the trial we now know that Linux has no copyright issues, but software patents are a different story because infringements need not be willful. Software developers defend copyrights, not patents.
_____
* Legalised but by no means ethical or acceptable — a point that’s made clear in films like “Oh Canada” and a point we covered in reference to Microsoft, which also uses tax havens in Europe.

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